Ashanti Wine and Country Estate (Pty) Ltd v Claasen and Others (LCC03/2020) [2025] ZALCC 56 (28 November 2025)

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IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG


CASE NO: LCC 03/2020


Not reportable


In the matter between:
ASHANTI WINE AND COUNTRY ESTATE (PTY) LTD Applicant
and
WILLEM CLAASEN First Respondent
LUWELLYN CLASSEN Second Respondent
ALUQIA CLASSEN Third Respondent
RIAAN CLAASEN Fourth Respondent
ISAAC CLAASEN Fifth Respondent
DORA CLAASEN Sixth Respondent
ABRAHAM CLAASEN Seventh Respondent
SONJA CLAASEN Eighth Respondent
ZELDA CLAASEN Ninth Respondent
JOHAN FREDDY FORTUIN Tenth Respondent

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DORIEN FORTUIN Eleventh Respondent
DENISE VAN ROOYEN Twelfth Respondent
JASMYN VAN ROOYEN Thirteenth Respondent
GERSHWIN FORTUIN Fourteenth Respondent
TASHILL RUITERS Fifteenth Respondent
KATRIENA JACOBS Sixteenth Respondent
BERTI JACOBS Seventeenth Respondent
FRANCOIS ISAACS Eighteenth Respondent
RICARDO JACOBS Nineteenth Respondent
BERTRUM JACOBS Twentieth Respondent
SAHRA FRANSE Twenty-First Respondent
MATHEUS FRANSE Twenty-Second Respondent
SANDRA ARENDSE Twenty-Third Respondent
ANTOINETTE ARENDSE Twenty-Fourth Respondent
LAXON ARENDSE Twenty-Fifth Respondent
ELZAAN ARENDSE Twenty-Sixth Respondent
PRINS PLAATJIES Twenty-Seventh Respondent
MARIA VAN ROOY Twenty-Eighth Respondent
PETROLENE THOMAS Twenty-Ninth Respondent
ROSALINE THOMAS Thirtieth Respondent
GERHARD THOMAS Thirty-First Respondent
TIAAN VAN WYK Thirty-Second Respondent
NETTIE WELCOME HOLLENBACH Thirty-Third Respondent
NICOLENE HOLLENBACH Thirty-Fourth Respondent
ALROY HOLLENBACH Thirty-Fifth Respondent
DIRK PAULSE Thirty-Sixth Respondent
JACOBA MAGDELENA PAULSE Thirty-Seventh Respondent
ELMARIE PAULSE Thirty-Eighth Respondent

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PHILLIPINE PAULSE Thirty-Ninth Respondent
DESIRE PAULSE Fortieth Respondent
ERNST ARENDSE Forty-First Respondent
ELIZABETH ARENDSE Forty-Second Respondent
CHRISZELLE ARENDSE Forty-Third Respondent
CHRISTIE PRETORIOUS Forty-Fourth Respondent
GERT VAN DER HEEVER Forty-Fifth Respondent
KATRIENA CLAASEN Forty-Sixth Respondent
FRANCINA CLAASEN Forty-Seventh Respondent
BENINE CLAASEN Forty-Eighth Respondent
CHRIS CLAASEN Forty-Ninth Respondent
CHARLENE CLAASEN Fiftieth Respondent
JACOB FORTUIN Fifty-First Respondent
LENA ARENDSE Fifty-Second Respondent
CHARLES FORTUIN Fifty-Third Respondent
PATRICK ARENDSE Fifty-Fourth Respondent
SAHRA SANDRA FRANSE Fifty-Fifth Respondent
PERSENS ARENDSE Fifty-Sixth Respondent
ALL THOSE HOLDING TITLE THROUGH
OR UNDER THE FIRST TO FIFTY-SIXTH
RESPONDENTS, OR OCCUPYING, WITH
OR WITHOUT CONSENT, COTTAGES
1, 2, 4, 7, 8, 10, 11, 13, 16, 17 AND 20 AT
FARM ASHANTI, REMAINING EXTENT
OF FARM NO. 1731,

DRAKENSTEIN MUNICIPALITY,
WESTERN CAPE Fifty-Seventh Respondent
DRAKENSTEIN MUNICIPALITY Fifty-Eighth Respondent

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DEPARTMENT OF RURAL DEVELOPMENT
AND LAND REFORM Fifty-Ninth Respondent

Coram: Deputy Judge President Cowen
Hearing: 28 and 29 August 2025
Delivered on: 28 November 2025



ORDER

[1] The parties are authorised, within two weeks of the date of this order,
to approach this Court on notice for an order to re -appoint as a
mediator Mr Elton Shortles (or another agreed mediator) for a period
of twelve months which may be extended on good cause shown.

[2] The Department of Rural Development and Land Reform is directed
to take such steps as may be necessary to finalise the processing of
the s 4 applications of the first to fifty seventh respondents within a
period of sixty days of the date of this order.

[3] Ashanti is granted leave to renew the application on the same papers
supplemented where necessary.

[4] There is no order for costs.

________________________________________________________________

JUDGMENT

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COWEN DJP

Introduction

[1] It is a troubling feature of litigation in this Court that many eviction cases
brought under the Extension of Security of Tenure Act 62 of 1997 (ESTA) result
in the eviction of occupiers to emergency accommodation . This occurs despite
the fact that ESTA is intended to secure the tenure of those vulnerable to eviction
and to promote access to suitable alternative accommodation. In this context, this
case is unusual for being marked by dedicated efforts on the part of the parties to
realise ESTA’s intentions. It also focuses attention on the role that mediation can
play in securing tenure.1

[2] The applicant, Ashanti Wine and Country Estate (Pty) Ltd (Ashanti), seeks
the eviction of the first to fifty -seventh respondents (the occupiers) in terms of
ESTA. The eviction is sought from a property known as the remaining extent of
farm 1731 situated in the Drakenstein Municipality, Paarl District, Western Cape
(the property), which Ashanti owns.

[3] The occupiers make up a community of some 72 people who have resided
on cottages on the property over very many years, in some cases for their entire
lives. It is common cause that they are occupiers protected by ESTA. They
comprise eleven households. At a point, members (or a member) of each
household were employed on the property, which used to be a vineyard, where
grapes were grown for the wine industry. The previous owner, C Shell 326 (Pty)
Ltd gave employees the right to occupy the cottages together with their family

1 This is an issue that recently attracted the attention of a Full Court of this Court in Marais NO and Another v
Daniels and Others [2025] ZALCC 36 (Marais).

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members. However, since 2006, the property has not been used as a vineyard
and the occupiers’ employment contracts were terminated.

[4] Ashanti purchased the property at a public auction in April 2010 and has,
since then, wished to and has sought to secure the relocation and eviction of the
occupiers. This is not the first eviction application instituted by Ashanti: it is
preceded by a prior unsuccessful application arising from a purported termination
of the occupiers’ rights of residence in August 2010. At that time, Ashanti sought
their vacation of the property by 30 October 2010. Ashanti offered each family
R20 000. Four families left. Most of the families rejected the offer as they would
not be able to purchase a house elsewhere and it would leave them homeless and
destitute. At a point, A shanti sought to find an alternative for the occupiers to
reside on another portion of the property. However, the Municipality was
unwilling to agree to erect structures or install services. Ashanti then instituted
eviction proceedings in the Paarl Magistr ates Court. The Magistrate refused the
eviction application, and, in February 2017, an appeal to the erstwhile Land
Claims Court failed.

[5] Ashanti again sought to terminate the occupiers’ rights of residence in
August 2018 as a precursor to these proceedings. It did so centrally on the basis
that the relationship between Ashanti and the occupiers has irretrievably broken
down. This is a ground upon which an eviction may be sought under s ubsec
10(1)(c) of ESTA which authorises an eviction where ‘ the occupier has
committed such a fundamental breach of the relationship between him or her and
the owner or person in charge, that it is not practically possible to remedy it, either
at all or in a manner which could reasonably restore the relationship.’

[6] Throughout these proceedings, instituted in January 2020, the respondents
have been willing to move if they have access to suitable alternative

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accommodation within their means. In turn, Ashanti has made a generous offer
to contribute to the occupiers’ obtaining secure tenure and suitable alternative
accommodation. The occupiers have accepted the offer provided they are in a
position to move from the property to the accommodation in question.

[7] Further parties to these proceedings are the Drakenstein Municipality (the
Municipality),2 the Department of Land Affairs and Rural Development 3 (the
Department) and the Department of Human Settlements 4 (the DHS). They are
joined in the proceedings due to their statutory responsibilities to report to Court
in respect of alternative accommodation and to facilitate access to housing and
security of tenure. This is a matter in which all of the parties have actively sought
to facilitate the occupiers’ access to secure tenure and suitable alternative
accommodation, which has not yet been achieved.

[8] This case is somewhat unusual due to the parties’ mutual, ongoing and
dedicated efforts to find a resolution of the dispute that would result in the
provision of land, housing and secure tenure to the occupiers . This is sought to
be achieved by invoking s 4 of ESTA which makes provision for State tenure
grants to occupiers. After initial informal attempts to resolve the matter, the
parties have – over the past two and half years – sought a resolution of the se
aspects through a court-ordered mediation process . To th at end, Ashanti has
tendered to pay R350 000 per household , up to a total of R3 850 000. The
mediation process has ensued in parallel with a process of active and ongoing
case management by the Court. The occupiers wish to accept the offer on the
understanding that they will obtain secure tenure and suitable alternative
accommodation with the provision of additional funds through s 4 grants.


2 As the fifty eighth respondent.
3 As the fifty ninth respondent.
4 As the sixtieth respondent.

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[9] By the end of May 2025, Ashanti – frustrated by what it saw as a lack of
tangible progress and protracted delays in the mediation – insisted on dates being
set for the hearing of the matter. The matter was heard on 28 and 29 August 2025.
At the commencement of the hearing, Ashanti made a ‘with prejudice’ offer
incorporated in a proposed draft order.5 In substance the offer had been on the
table for some time. Its broad import is that Ashanti will, upon the handing down
of the order, pay an amount of R3.85 million (comprising R350 000 per
household) into the trust account of specified attorneys. The payment of the funds

‘1. The applicant shall, within seven days of the date of handing down of this order, pay into the trust account of
Oosthuizen & Co Attorneys (the holding attorneys), an amount of R3.85 million (the settlement amount), being a
payment of R350 000 payable to each household currently present on the property as set out in the papers of record
herein.
1.1 The said amounts will be held in trust by the holding attorneys until paid over to the first to fifty seventh
respondents’ (the occupiers) attorneys of record, Ashraf Mahomed Attorneys (the occupiers’ attorney(s)) or such
other account as the occupiers’ attorney may nominate, as set out below.
2. The occupiers shall vacate the property known as the farm Ashanti, also known as the remaining extent of
farm 1731 situated in the Drakenstein Municipality, Paarl District, Western Cape (the property) by no later
than the 15th of July 2026, together with their belongings, and place the applicant in peaceful and undisturbed
possession thereof.
3. In the event the occupiers fail to vacate the property as set out above, and within the time period specified
above, then the sheriff of the above honourable court is authorized and directed to evict the occupiers from
the property, together with all perso ns occupying and / or claiming a right of residence at the property,

together with their possessions, and restore the applicant in vacant occupation thereof, said eviction not to
take place before the 31st of July 2026.
3.1 In the event it is necessary for the sheriff to so evict the occupiers, then the costs of giving effect to an eviction
order shall be deducted from the settlement amount before payment of the residue thereof to the occupiers’
attorneys of record.
3.2 An invoice received from the sheriff of the court as to the amount payable in giving effect to an eviction order
shall be deemed to be proof of such amount.
4. In the event the occupiers do so vacate the property as set out above, alternatively are evicted therefrom, then
the settlement amount, or the residue thereof after the costs of any eviction have been deducted, shall, upon
written confirmation by the appli cant’s attorney of record that the applicant has been restored in vacant
occupation of the property, be paid by the holding attorneys to the occupiers’ attorneys, said payment to take
place within 48 hours of the written confirmation as set out herein.
5. In the event a specific household on the property vacates the property and restores the applicant in vacant
occupation of the premises occupied by them, then an amount of R350 000 shall be paid by the holding
attorneys into the trust account of occupiers’ attorney.
5.1 Written confirmation by the applicant’s attorney of record that the applicant has been restored in vacant
occupation of a specific premises, shall be sufficient for the holding attorneys to pay an amount of R350
0000 into the occupiers’ attorney of record’ s trust account, said payment to take place within 48 hours of
receive of the written confirmation as set out herein.
6. Any household on the property, or any member of that household, that remains on the property after 30
September 2025 shall lose any entitlement to the R350 000 which the applicant has undertaken to pay to such
household.

household.
6.1 An affidavit deposed to by the holding attorney, pursuant to an inspection of the property, to the effect that
a household, or member thereof, remains on the property, will be sufficient for the holding attorney to
repay to the applicant the amount held by it in respect of such household.
7. There shall be no order as to costs save as set out above.’

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is contingent upon the occupiers vacating the property by no later than 31 August
2026. The draft order contemplated that the occupiers may be evicted if the
property was not vacated on that date and the costs of eviction would be taken off
the R350 000. In other words, Ashanti remained open to contributing a substantial
amount of money but sought finality in the matter and a fixed date for vacant
occupation. This tender was not accepted in circumstances where, given ongoing
delays within the Department in finalising the process of securing tenure, there is
simply no assurance that the accommodation will be available by August 2026.
Importantly, at this stage, the s 4 grant applications have not been formally
approved, although, according to counsel for the Department, this is a formality.
Indeed, counsel for the Department in vited the Court to subject it to an order to
finalise its processes. Shortly after the hearing, Mr Shortles – the mediator –
proposed an adjusted draft order also on an open basis. This too came to naught.

[10] In these circumstances, the following issues arise for decision:

a. An application to strike out various supplementary affidavits;

b. Whether Ashanti terminated the occupiers’ rights of residence
in accordance with s 8 of ESTA;

c. Whether Ashanti has made out a case for the eviction of the
occupiers having regard to the provisions of s 11 and subsec
10(1)(c) of ESTA and / or subsec 10(2) of ESTA.

d. Ongoing mediation and a counter-application instituted by the
respondents in which they seek inter alia (ongoing) mediation
and engagement in respect of the provision of security of
tenure pending the delivery of judgment.

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Legal framework

[11] ESTA is ‘remedial legislation umbilically linked to the Constitution’ which
seeks to protect people whose tenure of land is insecure .6 In Daniels, the
Constitutional Court explored the social and historical background to ESTA
tracing the process of dispossession of land and the creation of conditions of
insecure tenure.7 I do not repeat this history here but it must be kept front of mind
when applying ESTA. That history underscores ESTA’s purpose of giving effect
to s 25(6) and s 26(1) of the Constitution, which promise security of tenure and
the right of access to adequate housing. 8 Those purposes are recognised in
ESTA’s preamble.9

[12] Under s 9(2) of ESTA, a court may only make an order for the eviction of
an occupier if the conditions in subsecs 9(2)(a) to (d) are complied with.10 In this

6 Klaase and Another v van der Merwe N.O. and Others [2016] ZACC 17; 2016 (9) BCLR 1187 (CC); 2016 (6)
SA 131 (CC) (Klaase) para 51. See too Molusi and others v Voges NO and others [2016] ZACC 6; 2016(3) SA
370 (CC) 2016(7) BCLR 839 (CC) (Molusi) para 1.
7 Daniels v Scribante and Another [2017] ZACC 13 ; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC)
(Daniels) paras 14 to 22. This history was briefly recounted in Marais above n 1 at paras 17 to 19.
8 Marais above n 1 para 20.
9 WHEREAS many South Africans do not have secure tenure of their homes and the land which they use and are
therefore vulnerable to unfair eviction;
WHEREAS unfair evictions lead to great hardship, conflict and social instability;
WHEREAS this situation is in part the result of past discriminatory laws and practices;
AND WHEREAS it is desirable –
that the law should promote the achievement of long-term security of tenure for occupiers of land, where possible
through the joint efforts of occupiers, land owners, and government bodies;
that the law should extend the rights of occupiers, while giving due recognition to the rights, duties and legitimate
interests of owners;

interests of owners;
that the law should regulate the eviction of vulnerable occupiers from land in a fair manner, while recognizing the
right of landowners to apply to court for an eviction order in appropriate circumstances;
to ensure that occupiers are not further prejudiced;
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-’
10 Section 9 reads: Limitation on eviction
(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued
under this Act.
(2) A court may make an order for the eviction of an occupier if—
(a) the occupier’s right of residence has been terminated in terms of section 8;
(b) the occupier has not vacated the land within the period of notice given by the owner or person in charge;
(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and
(d) the owner or person in charge has, after the termination of the right of residence, given—

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regard, eviction is a two -phased process entailing initially a termination of an
occupier’s right of residence in terms of s 8 of ESTA and thereafter an application
for eviction before a Court under s 9.11

[13] In adjudicating matters under ESTA, Courts are enjoined to take into
account the opposing interests of landowners and occupiers . In Molusi,12 the
Constitutional Court held:

‘ESTA requires that the two opposing interests of the landowner and the occupier need to be
taken into account before an order for eviction is granted. On the one hand there is the
traditional real right inherent in ownership reserving exclusive use and pr otection of property
by the landowner. On the other there is the genuine despair of our people who are in dire need
of accommodation. Courts are obliged to balance these interests. A court making an order for
eviction must ensure that justice and equity pr evail in relation to all concerned. It does so by
having regard to the considerations specified in s 8 read with s 9, as well as ss 10 and 11, which
make it clear that fairness plays an important role.’

[14] Of similar import is the following dictum of the Constitutional Court in PE
Municipality,13 which, while made in the context of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998, has application
under ESTA14: ‘[The judicial function in eviction matters is] not to establish a
hierarchical arrangement between the different interests involved, privileging in
an abstract and mechanical way the rights of ownership over the right not to be
dispossessed of a home, or vice versa. Rather, it is to balance out and reconcile

(i) the occupier;
(ii) the municipality in whose area of jurisdiction the land in question is situated; and
(iii) the head of the relevant provincial office of the Department of Rural Development and Land Reform, for
information purposes,

information purposes,
not less than two calendar months’ written notice of the intention to obtain an order for eviction, which notice shall
contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of
application to a court has, after the termination of the right of residence, been given to the occupier, the municipality
and the head of the relevant provincial office of the Department of Rural Development and Land Reform not less than
two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to
have been complied with.
11Aquarius Platinum (SA) (Pty) Ltd v Bonene and others 2020(5) SA 28( SCA); [2020] 2 All SA 323 (SCA);
[2019] ZASCA 7 para 7.
12 Molusi above n 6 para 39.
13 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7 ; 2005 (1) SA 217 (CC); 2004 (12) BCLR
1268 (CC) (PE Municipality)
14 Marais above n 1 para 61.

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the opposed claims in as just a manner as possible, taking account of all the
interests involved and the specific factors relevant in each case.’15

[15] The first requirement for an eviction order in issue in this application is
that an occupier’s right of residence has been terminated in terms of section 8 ,16
which requires inter alia that any termination be just and equitable having regard
to all relevant factors, and in particular those listed in s 8(1)((a) to (e) . What an
owner must prove to meet that requirement depends on the facts of a particular
case.17

[16] In this case, the evidence established that several of the occupiers are
protected by s 8(4) of ESTA in that they have resided on the property for over ten
years and have reached the age of sixty. Section 8(4) confers strong protections

15 PE Municipality above n 13 para 23.
16 ‘8 Termination of right of residence.
(1) Subject to the provisions of this section, an occupier’s right of residence may be terminated on any lawful
ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular
to—
(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person in
charge relies;
(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier
concerned, and any other occupier if the right of residence is or is not terminated;
(d) the existence of a reasonable expectation of the renewal of the agreement from which the right of residence
arises, after the effluxion of its time; and
(e) the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier
had or should have been granted an effective opportunity to make representations before the decision was made
to terminate the right of residence.

to terminate the right of residence.
(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an
employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance
with the provisions of the Labour Relations Act.
(3) Any dispute over whether an occupier’s employment has terminated as contemplated in subsection (2), shall
be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect
when any dispute over the termination has been determined in accordance with that Act.
(4) The right of residence of an occupier who has resided on the land in question or any other land belonging to
the owner for 10 years and-
(a) has reached the age of 60 years; or
(b) is an employee or former employee of the owner or person in charge, and as a result of ill health, injury or
disability is unable to supply labour to the owner or person in charge,
may not be terminated unless that occupier has committed a breach contemplated in section 10 (1) (a), (b) or (c):
Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute
such a breach.
(5) ...
17 Nimble Investments (Pty) Ltd v Johanna Malan and Others [2021] ZASCA 129; [2021] 4 All SA 672 (SCA);
2022 (4) SA 554 (SCA) at para 61.

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against the termination of rights of occupiers in this category that entail that their
rights may only be terminated in the narrow circumstances that that occupier has
committed a breach contemplated in subsecs 10(1)(a), (b) or (c) of ESTA. Ashanti
relies in this regard on subsec 10(1)(c) referred to above.18

[17] One issue in contention in this case is the duty to act fairly in the process
of terminating the occupiers’ rights of residence under s 8 of ESTA .
In Snyders, the Constitutional Court held:
‘Section 8(1) makes it clear that the termination of residence must be just and equitable both at
a substantive level as well as at a procedural level. The requirements for the substantive
fairness of the termination is captured by the introductory part that requires the termination of
a right of residence to be just and equitable. The requirement for procedural fairness is captured
in s8(1)(e).’

[18] Importantly, interpreting section 8(1)(e), the Constitutional Court held:
‘ESTA requires the termination of the right of residence to also comply with the requirements
of procedural fairness to enable this person to make representations why his or her right of
residence should not be terminated. … A failure to afford a person t hat right will mean that
there was no compliance with this requirement of ESTA. This would render the purported
termination of the right of residence unlawful and invalid. It would also mean that there is no
compliance with the requirements of ESTA that the eviction must be just and equitable.’

[19] Ashanti, however, relies on the subsequent decision of the Supreme Court
of Appeal (SCA) in Nimble Investments,19 to contend that there is no duty to
afford such an opportunity in circumstances where a landowner relies on the
breakdown of the relationship between an owner and occupier .20 As indicated
above, this constitutes a circumstance under which a s 8(4) occupier’s rights may

above, this constitutes a circumstance under which a s 8(4) occupier’s rights may
be terminated and in which a Court may grant an eviction under section 10(1)(c)
of ESTA , and upon which Ashanti rel ies. In this regard, t he SCA held that a
construction of ESTA ‘that an owner is required to grant an occupier an

18 At para 5 and see too n 23 below.
19 Above n 17.
20 See above at para 5 and n 23 below.

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opportunity to make representations once it is found that the occupier has
committed a fundamental breach of their relationship which is practically
impossible to continue, is both insensible and intolerable. It would also render
the provisions of s 10(1)(c) nugatory: what is contemplated is whether objectively
the relationship is at an end.’21 No argument was, however, addressed on how this
Court is to reconcile Snyders and Nimble Investments or indeed whether the
dictum in Nimble Investments goes so far as was contended when regard is had
to the fuller judgment.22 It is not necessary for me to deal with this, however, as
this case is distinguishable from Nimble Investments at least because Ashanti did
provide an opportunity to the occupiers to make representations before
terminating their rights of residence, and in doing so, it in any event assumed a
duty to act fairly . Moreover, the question whether there is an irretrievabl e
breakdown of the relationship due to a fundamental breach is and was wholly in
dispute and I have concluded that that has not been established. In such a case, it
is difficult to see why it would be either insensible or intolerable to consider
representations at the stage of termination of rights in terms of s 8. Indeed, at least
on the facts in this case, the opposite would be true.

[20] Section 9(2)(c) of ESTA requires that before an eviction order is granted,
the conditions for an order for eviction in terms of s 10 or s11 have been complied
with’. Section 10 applies to occupiers who were occupiers on 4 February 199723

21 Para 70.
22 See eg para 68.
23 Section 10. Order for eviction of person who was occupier on 4 February 1997
(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if –
(a) The occupier has breached section 6(3) and the court is satisfied that the breach is material and that the
occupier has not remedies such breach;

occupier has not remedies such breach;
(b) The owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right
to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material
and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach
despite being given one calendar month’s notice to do so;
(c) The occupier has committed such a fundamental breach of the relationship between him or her and the owner
or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably
restore the relationship; or
(d) The occupier –
(i) Is or was an employee whose right of residence arises solely from that employment; and

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and section 11 applies to occupiers who became occupiers thereafter. 24 Section
10 imposes more restrictive requirements for an eviction order and conversely,
greater protection for occupiers. In this case, Ashanti contends that the occupiers
comprise some people who enjoy the protection of s 10 and others who enjoy the
lesser protection of s 11. However, in circumstances where Ashanti has not
established which occupiers are protected by which provision, and in
circumstances where some occupiers enjoy the protection of subsec 8(4), Ashanti
was, in effect, constrained to argue its case contending that it has met the
requirements of either subsec 10(1)(c) of ESTA or subsec 10(2). Section 10(2)
contemplates the grant of an eviction order where there is suitable alternative
accommodation available to the occupiers. In any event, Ashanti relies on the
same facts and circumstances to justify an eviction under either s 10 or s 11.


(ii) Has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of
the Labour Relations Act.
(2) Subject to the provisions of subsection (3), if none of the circumstances referred to in subsection (1) applies, a
court may grant an order for eviction it is satisfied that suitable alternative accommodation is available to the occupier
concerned.
(3) If –
(a) Suitable alternative accommodation is not available to the occupier within a period of nine months after the
date of termination of his or her right of residence in terms of section 8;
(b) The owner or person in charge provided the dwelling occupied by the occupier; and
(c) The efficient carrying on of any operation of the owner or person in charge will be seriously prejudiced unless
the dwelling is available for occupation by another person employed or to be employed by the owner or person in
charge,
A court may grant an order for eviction of the occupier and of any other occupier who lives in the same dwelling as

him or her, and whose permission to reside there was wholly dependent on his or her right of residence if it is just
and equitable to do so, having regard to:
(i) The efforts which the owner or person in charge and the occupier have respectively made in order to
secure suitable alternative accommodation for the occupier; and
(ii) The interests of the respective parties, including the comparative hardship to which the owner or person
in charge, the occupier and the remaining occupiers shall be exposed if an order for eviction is or is not granted.
24 Section 11: Order for eviction of person who becomes occupier after 4 February 1997
(1) …
(2) In circumstances other than those contemplated in subsection (1), a court may grant an order for eviction in
respect of any person who became an occupier after 4 February 1997 if it is of the opinion that it is just and equitable
to do so.
(3) In deciding whether it is just and equitable to grant an order for eviction in terms of this section, the court shall
have regard to –
(a) The period that the occupier has resided on the land in question;
(b) The fairness of the terms of any agreement between the parties;
(c) Whether suitable alternative accommodation is available to the occupier;
(d) The reason for the proposed eviction; and
(e) The balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the
land.

Page 16 of 57

[21] As appears from the provisions of both ss 10 and 11, the availability of
suitable alternative accommodation is a material factor, an d decisive under s
10(2). ‘Suitable alternative accommodation’ is defined in section 1 of ESTA to
mean:
‘Alternative accommodation which is safe and overall not less favourable than the occupiers’
previous situation, having regard to the residential accommodation and land for agricultural
use available to them prior to eviction, and suitable having regard to –
(a) The reasonable needs and requirements of all the occupiers in the household in question
for residential accommodation, land for agricultural use and services;
(b) Their joint earning abilities;
The need to reside in proximity to opportunities for employment or other economic activities
if they intend to be economically active.’

[22] The duty to provide access to housing is a duty that ordinarily resides with
the State and not landowners, although there are cases where this duty will reside
with the landowner. 25 However, in Blue Moonlight,26 the Constitutional Court
held: ‘It could reasonably be expected that when land is purchased for
commercial purposes the owner, who is aware of the presence of occupiers over
a long time, must consider the possibility of having to endure the occupation for
some time. Of course, a propert y owner cannot be expected to provide free
housing for the homeless on its property for an indefinite period. But in certain
circumstances an owner may have to be somewhat patient.’

[23] In Marais, this Court noted that there are three primary mechanisms
through which ESTA seeks to provide security of tenure for those vulnerable to
eviction.27 The first is by prescribing that the availability of suitable alternative
accommodation is either a relevant consideration or, in some cases, a prerequisite
for the grant of an eviction order.28 The second is through the provision of tenure

for the grant of an eviction order.28 The second is through the provision of tenure

25 Baron v Claytile (Pty) Ltd and another [2017] ZACC 24; 2017(10) BCLR 1225 (CC); 2017(5) SA 329 (CC)
at para 37.
26 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC)
[2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) at para 40.
27 Above n 1 para 64.
28 Para 65.

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grants under s 4 of ESTA , as amended by the Extension of Security of Tenure
Amendment Act 2 of 2018 (ESTA Amendment Act).29 One of the uses intended
for tenure grants is what is referred to as an ‘off -site development’, which is
defined to mean ‘a development which provides the occupants thereof with an
independent tenure right on land owned by someone other than the owner of t he
land on which they resided immediately prior to such development.’ Section 4(2)
details criteria relevant to whether the Minister should approve an application for
a tenure grant and if so the priority to be given to the application.30 That use is in
issue in this case.

[24] The third primary mechanism through which ESTA seeks to provide
security of tenure for those vulnerable to eviction arises from the ESTA
Amendment Act, by providing for compulsory mediation in certain cases.31 While
compulsory mediation applies to litigation post the ESTA Amendment Act, 32
mediation is nonetheless ‘a suitable vehicle through which the purpose of
securing tenure for occupiers may be explored and navigated’, given the multiple
overlapping and competing interests at stake. 33 Moreover, as held in Marais,
‘mediation provides a vehicle through which the multiple stakeholders involved
in the process of securing tenure can find each other’ including not only owners
and occupiers but also the relevant Municipality, the Department and other
government departments such as DHS .34 Importantly, in PE Municipality, the
Constitutional Court unanimously endorsed court -ordered mediation in an
appropriate case.35


29 Para 66.
30 These include the imminency of an eviction, the attempt made by owners and occupiers to devise a development
that entails a mutual accommodation of their interests and whether the development entails a mutual
accommodation of the interests of owners and occupiers.
31 Para 68.

accommodation of the interests of owners and occupiers.
31 Para 68.
32 In Marais, above n 1, this Court held that the compulsory mediation requirements only apply prospectively and
not to proceedings instituted before the ESTA Amendment Act came into operation on 1 April 2025.
33 Marais above n 1 para 67.
34 Marais above n 1 para 67.
35 Above n 13 para 45.

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[25] Mediation is not the only mechanism through which the position of
occupiers is protected. A further mechanism is meaningful engagement, being
‘the process whereby the parties to the litigation engage with each other and the
relevant municipality with a view to avoiding the homelessness of the occupier.’36
As held in Marais, ‘the requirement of meaningful engagement as a process that
must be embarked upon to limit homelessness before an eviction order is granted
has long been recognized under ESTA.’ 37 Moreover, it is a process that is
‘instrumental to finding just and equitable resolutions to eviction disputes and
ones that promote tenure security of occupiers and balance the rights of
landowners and occupiers.’38

Background to the proceedings

[26] As indicated above, this is not the first eviction application that has been
instituted to evict the occupiers. During 2006, the previous owner sought to
terminate the occupiers’ rights of residence at the termination of their
employment. After Ashanti became the owner of the property some four years
later, and in August 2010, Ashanti alleges that its labour consultant Mr Andre
Bloem orally terminated the rights of occupation of all occupiers affording them
until 30 October 2010 to vacate the property. According to Ashanti, the reasons
for termination at that stage were that the property was overcrowded and the cost
of accommodating the occupiers was becoming a financial burden Ashanti could
not feasibly carry. This led to the unsuccessful eviction proceedings in the
Magistrates Court which culminated in 2017 in an unsuccessful a ppeal to the
erstwhile Land Claims Court.


36 Marais above n 1 para 74.
37 Id.
38 Marais above n 1 para 80.

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[27] According to Ashanti, there was ongoing material harm occasioned by the
breakdown of the relationship. During August 2018, notices were delivered to the
occupiers noting that Ashanti was considering terminating their rights of
residence on the basis inter alia that the relationship between Ashanti and the
occupiers ha d completely broken down for several stated reasons allegedly
pertaining to the occupiers’ conduct as follows:

a. There is no meaning ful relationship or contact between
Ashanti and the occupiers;
b. The occupiers allow third parties to occupy the property with
them. This has resulted in excessive water and electricity
consumption, undue strain on sewage and water disposal
systems, overcrowding and problems with human, animal and
household waste disposal on the property;
c. Third parties visit the occupiers without obtaining prior
consent from Ashanti;
d. The designated access and exit points are continuously
disregarded, with the result of unrestricted flow of people on
the property including third parties. This results in security
breaches due to persons unknown to them traversing the
property with unknow n people disturbing the peace with
raucous and noisy behaviour accompanied by public abuse of
alcohol.
e. The occupiers are keeping dogs and other animals on the
property;
f. The occupiers are failing to maintain the premises they
occupy in a fit and proper condition.
g. The occupiers are failing or refusing to pay or tender
consideration for services consumed by them on the property.

Page 20 of 57

h. The conduct causes, or allows to be caused, damage to the
property including to fencing and a marked increase in the
prevalence of theft and vandalism of goods on the property.

[28] The notices invited the occupiers to make written representations by 30
September 2018 as to why their rights should not be terminated. The notices
offered certain forms of assistance in obtaining alternative accommodation and
recorded that it was Ashanti’ s hope that the matter could be resolved amicably.
The notices encouraged the occupiers to contact inter alia the University of
Stellenbosch Legal Aid Clinic or another lawyer.

[29] The occupiers did approach the University of Stellenbosch Legal Aid
Clinic and an extension of time was afforded to make representations. Save for
the occupiers of two cottages, the occupiers submitted representations on 25
October 2018. The occupiers’ response was multi -faceted. Ashanti alleges that
the response makes it clear that there is no meaningful relationship between
Ashanti and the occupiers. The occupiers submitted that they have made
numerous attempts to establish such a relationship, but that they are purposely
avoided. They denied that they allow third parties to occupy the property with
them and further denied the issues related thereto. They denied knowledge of any
rule that prior consent was required for visitors. They denied disregarding
designated access and exit points or keeping dogs on the property. They denied
failing to maintain the premises in a fit and proper condition. They submitted that
they had on numerous occasions sought to pay for services , but this was not
accepted or even sought. They explained that they would apply for housing at
the Municipality and in the meantime offered to pay an unspecified rental. They
reiterated that they were unable to afford alternative accommodation.

Page 21 of 57

[30] The representations did not sway Ashanti in its resolve to terminate the
occupiers’ rights of residence. On 14 November 2018, termination notices were
delivered to the occupiers.

[31] Ashanti instituted these proceedings in January 2020 . The founding
affidavit is deposed to by Mr Bjorn Geiger. In April 2021, after delivery of a
notice of bar, the occupiers delivered a notice of counter -application and an
answering affidavit, deposed to by Mr Willem Claasen, the first respondent. In
this regard, the occupiers have established a committee for purposes of protecting
their rights and interests. Mr Willem Claasen is the Chairperson of the Committee
and he serves with four other occupiers. Mr Claasen explains upfront that the
committee does not represent certain respondents who have left the property or
are deceased.39

[32] In the notice of counter-application, the occupiers sought various forms of
relief including an order directing the parties to attempt to settle the dispute
through a process of mediation and negotiation, and staying the proceedings
pending the mediation process, directions concerning the appointment of a
mediator, directing the parties to enter into a process of meaningful engagement
for purposes of developing a framework to secure the tenure rights of the
respondents and ensuring that they are not left ho meless and destitute and
reporting back to the Court on the progress made on the engagements within three
months of the date of the order, ordering that the eviction b e stayed pending a
land rights audit of the respondents’ rights in the event of their defen ces failing
and an eviction order being granted. Ashanti delivered a replying and answering
affidavit in February 2022 . The delay, they say, was occasioned by efforts on
their part to reach an amicable resolution of the matter.

39 This includes the 4th, 6th, 17, 22nd, 23rd, 24th, 34th, 44th and 54th respondents (who have moved) and the 5th, 28th,

33rd and 56th respondents who are deceased.

Page 22 of 57


[33] After an initial postponement, the matter was set down for January 2023.
At that time there were two reports before Court from the Municipality and
Department. This included a report on possible accommodation and emergency
accommodation from the Munic ipality filed on 19 March 2021 and a report in
terms of section 9(3) of ESTA from the Department dated 18 November 2020.

[34] On 27 January 2023, an order was granted by agreement postponing the
matter for three months for purposes of mediation. The 60th respondent, the DHS,
was joined in the proceedings . The mediator was tasked with attempting to
resolve the dispute between the parties regarding the voluntary vacation of the
property and the relocation of the occupiers. This ensued in circumstances where,
without prejudice to their rights, the occupiers were willing to explore voluntary
relocation and Ashanti had offered to make payment of R350 000 per household
to this end.

[35] In the January 2023 order, the Municipality was ordered to deliver a report
containing a series of information specified in an Annexure A relating to the
occupier’s position on the housing list, waiting periods, an update of the housing
report and whether the occupiers could be accommodated in any formal housing
project, an update on the availability of emergency accommodation, details on
mechanisms available to the Municipality to assist the residents to obtain housing,
the availability and cost of accommodation in the open market for an amount of
less than R600 000 and the availability and cost of rental accommodation. The
Municipality was directed, in dealing with these matters, to indicate the extent to
which it is or is not possible to accommodate the occupiers’ wish to stay together
and live in proximity to each other. The Municipality delivered its report in March
2023.

Page 23 of 57

[36] The Department was also ordered to deliver a report dealing with various
matters specified in an Annexure B. These included a supplementary report in
terms of section 9(3) of ESTA addressing the circumstances of the occupiers,
their employment status, income, educational status, schooling and financial
support, and a further report dealing with, inter alia, the feasibility of the
Department buying a portion of the property, whether the Department has any
mechanisms or funds available to top up the R350 000 offer from Ashanti or to
provide land for the occupiers to settle as a community. The Department was also
asked to indicate the extent to which it may be possible to accommodate the
occupiers’ wish to stay together or live in close proximity with each othe r. The
Department delivered its response in March 2023.

[37] The DHS was requested to deliver a report too, on issues set out in an
Annexure C. This included the nature and extent of subsidies available to the
occupiers to ensure alternative accommodation, the status of pending requests for
assistance and related matters, and whether the DHS has any mechanism or funds
available inter alia to top up Ashanti’s offer or to provide land to the occupiers
to settle as a community. The DHS delivered its report in February 2023.

[38] Despite delays, a mediator was appointed and the mediation commenced.
Under the January 2023 order, the process of case management was to continue
to monitor progress in the matter. As matters transpired, and by agreement
between the parties, the dates for the mediation were extended in circumstances
where progress was being made. 40 At a point , however, it became necessary to
appoint a new mediator,41 as the first mediator resigned the post that conferred on

40 An order dated 6 March 2023 extended the mediation period until 30 June 2023. An order dated 5 June 2023
extended the mediation period until 31 August 2023 and the mediator’s mandate was extended. An order dated 4

August 2023 extended the period until 15 September 2023. An order dated 18 October 2023 extended the
mediation period until 30 November 2023.
41 Mr Shortles.

Page 24 of 57

her the entitlement to mediate,42 and agreement was reached between the parties
regarding a new mediator.

[39] In circumstances where Ashanti had become concerned about the delays in
the mediation and absence of concrete progress, the matter was then set down for
April 2024. The mediator was requested to deliver a mediation report, the parties
were requested to indicate whether they wish to continue with the mediation and
provision was made for the delivery of supplementary affidavits. The
supplementary affidavits became controversial and are the subject of the
application to strike referred to above.

[40] In April 2024, the matter was ultimately postponed until 4 September 2024.
The mediation continued in the meantime. By the end of 2024, Ashanti was
pressing for the matter to be set down early in 2025, but it continued to co-operate
in the mediation process. The mediation continued but Ashanti ultimately insisted
that the matter be argued and dates were finally set to hear the matter on 28 and
29 August 2025. A site inspection was conducted in July 2025 and the parties
were afforded an opportunity to deliver further affidavits updating the Court and
dealing with the issues arising from the site inspection.

Factual background

[41] The facts are gleaned from a consideration of the affidavits place d before
Court in light of the principles in Plascon-Evans43 and Wightman.44 Although
there are multiple disputes on the papers, the material facts are either common
cause or can be determined in light of th ese principles. At the hearing, counsel
for the occupiers contended that if any material disputes of fact cannot be resolved

42 Ms Maclons.
43 Plascon-Evans Paints v Van Riebeeck Paints 1984(3) 623 (A) (Plascon Evans) at 634H-635C
44 Wightman t/a JW Construction v Headfour (Pty) Ltd and ano 2008(3) SA 371 (SCA) (Wightman) para 13.

Page 25 of 57

on affidavit they should be referred to oral evidence. It has not been necessary to
reach this issue.

[42] I have also had regard to the further information in the various reports
supplied to Court , specifically, the Department’s section 9(3) report dated 18
November 2020, the Municipality’s Housing Report dated 24 March 2021 and
the further reports delivered by the Municipality and Department in March 2023
(including a supplementary section 9(3) report)) and the DHS in February 2023.
Also of assistance is a report on available rental stock delivered by Ashanti in
February 2023.

[43] During the hearing, Ashanti sought to compare the occupiers’ stance in its
response to the request for representations and its stance in the answering
affidavit, to draw the inference that there has been a change in stance that is
difficult to reconcile with a bona fide defence. I have compared the responses ,
and, while there are changes, I do not agree that any change warrants such an
inference. In this regard, I am mindful inter alia of the differences in the levels
of sophistication between the documents responded to and the responses, and that
the tenor and content of the documents responded to have, themselves shifted
through the proceedings. Further considerations relevant to the assessment of
evidence are the occupiers’ contentions that aspects of the evidence of Ashanti
are hearsay in nature and that allegations made against the occupiers are vague
and unsubstantiated and at time gratuitous and inflammatory.

[44] The application to strike relates to an affidavit dated 16 March 2024
deposed to by the occupiers’ attorney Mr Ashraf Mahomed on behalf of his
clients. The affidavits seek to place before the Court information about the
collapse of settlement discussions at a point prior thereto and to impute bad faith
on the part of Ashanti and its legal representatives. Ashanti applies to strike the

Page 26 of 57

affidavit and seeks costs, in circumstances where they say its content is irrelevant,
defamatory, vexatious and scurrilous. In my view, it is not necessary to deal with
the application to strike the affidavit because, although it was filed, it was not
admitted into evidence before the Court and in view of subsequent developments,
the occupiers do not seek to rely on it s content. In view of the absence of any
ongoing relevance and its allegedly defamatory content, it warrants emphasis that
this Court has not and does not receive the affidavit into evidence. The only issue
is costs occasioned by the affidavit, to which I return below.

[45] There are two primary factual issues that require determination. The first
is whether there is suitable alternative accommodation available to the occupiers.
Should suitable alternative accommodation be available , that would provide a
basis, under s ubsec 10(2) of ESTA, for Ashanti to seek the eviction of the
occupiers who are not protected by subsec 8(4). The second is whether there has
been an irretrievable breakdown of the relationship between Ashanti and the
occupiers as contemplated by subsec 10(1)(c).

Suitable alternative accommodation
[46] The availability of suitable alternative accommodation 45 stands to be
considered in light of the progress made in the mediation process, Ashanti’s
tender and the available housing stock in the area.

[47] The available private rental stock is dealt with in a report delivered by
Ashanti in February 2023 prepared by a Hanno Koen of Greeff Properties and
Christies Real Estate. It reveals that at that time there was only one property
available in Paarl and Wellington under R5000 per month and only seven
properties for occupiers between R5000 and R10 000 per month. This is not
enough stock for the occupiers. Moreover, the rental accommodation is clearly

45 See definition above para 21.

Page 27 of 57

unaffordable for them, save for Ashanti’s tender which would enable them to
access rental accommodation for three to four years. There is no Municipal rental
stock available, as appears from the Municipality’s report of March 2023.

[48] The housing stock available to purchase is dealt with in the Municipality’s
report of March 2023. That report reveals that there were then some 26 properties
for sale in the Drakenstein area under R600 000. Only four properties were
slightly under R360 000.00. Most of the properties were well in excess of
Ashanti’s tendered amount and would only be affordable with subsidies . The
mediation and engagement processes have, at least at this stage, not yielded this
solution in respect of State tenure grants . Rather, a different solution is being
explored and is far advanced.

[49] The Municipality also supplied information as to which of the occupiers
are on its housing waiting list , which list serves to facilitate access to housing
through the national and provincial governments. Save in respect of two
households, it appears that at least one member of each household is on the
waiting list. However, there is no clarity about when housing might be delivered
under any relevant programme.

[50] The only imminently realisable prospect of securing suitable alternative
accommodation for the occupiers emerged from the mediation process and
related engagements which ensued under court direction. As indicated above, the
mediation process ensued over a very lengthy period of time. A material reason
for this was that the delivery model that was being explored by the parties,
including the Municipality and the Department was a new one. The Department,
in particular , encountered significant challenges in devising how to deliver
housing under s 4 of ESTA in circumstances where it is to be part funded by
Ashanti and a desirable development by a private developer had been identified.

Ashanti and a desirable development by a private developer had been identified.
It must be noted that in circumstances where s 4 of ESTA has, for a long time,

Page 28 of 57

contemplated the provision of state subsidies to secure tenure including to
occupiers vulnerable to eviction, 46 it is hard to understand why there are no
effective systems in place to deliver suitable alternative accommodation to
occupiers not least where an owner is seeking to assist . Nonetheless, given that
the ESTA Amendment Act, which commenced only on 1 April 2024, strengthens
s 4 and related institutional processes, it may be accepted that Parliament
appreciated that there were systemic deficiencies that required redress. It may
also be noted that over time, s 4 is only rarely invoked in ESTA matters, a matter
of some concern given its materiality to achieving the redistributive and tenure
security objectives of ESTA to redress past historical wrongs . In these
circumstances, while the mediation process has starkly exposed the inefficiencies
in the Department’s delivery of s 4 grants and systems, it is nonetheless a source
of some comfort that this is a case where its intention to improve and develop
these systems was apparent. As the m ediator pointed out, ‘the absence of an
established template compels the parties to navigate uncharted waters,
necessitating the development of a bespoke solution.’ Moreover, the parties took
the view that the mediation in process is unprecedented and held the potential ‘to
set a transformative precedent, potentially redefining the procedural and legal
framework for similar cases that may come before the [Court].’

[51] Little purpose would be served by setting out in detail the multiple
mediation meetings, reports and related case management conferences that took
place with a view to securing suitable alternative accommodation for the
occupiers relying on both the Ashanti offer and s 4 grants. Suffice to emphasise
that these were regular and ongoing.


46 Before the ESTA Amendment Act, s 4 provided for the grant of subsidies inter alia to facilitate off -site

developments, to enable occupiers, former occupiers and other persons who need long term security of tenure to
acquire land or rights in land and to develop land to occupied in terms of off-site developments.

Page 29 of 57

[52] As the Department’s counsel readily conceded, however, the process
ensued at a snail’s pace, with parties becoming understandably frustrated . In
brief, after exploring various options, what was pursued is a process whereby the
Department will facilitate the acquisition of title rights over eleven houses to be
developed in a development known as the Newton Estate Housing Development.
It was Ashanti who identified the development. The Department initially explored
a mechanism for doing so directly, which was then abandoned . What was
eventually pursued was a process whereby the Department would conclude an
agreement with the Municipality to appoint it as a its implementing agent for
purposes of concluding a service level agreement with the developer, a Silver
Crow Properties 20 (Pty) Ltd (the developer).

[53] However, Ashanti ultimately insisted on the matter being set down before
the agreement between the Department and Municipality was finally concluded
and the s 4 grants approved within the Department. In doing so, Ashanti adopted
the stance that there had been no tangible progress in the mediation despite the
lapse of a long time . The occupiers and the De partment disagreed, in my view
with reason. While progress was painstakingly slow, and the dates for delivery of
the project were set back, there was progress: the developer offered the properties
to the Department, the Department approved the registration of the project and
the negotiation and conclusion of an agency agreement between the Municipality
and the Department was at a very advanced stage. Nonetheless, in circumstances
where Ashanti ultimately sought access to Court to resolve its eviction dispute,
the matter was set down. As appears from its draft order submitted at the hearing,
Ashanti’s tender remained on the table until the end August 2026, but it then
sought a fixed date for vacation contending that , if need be, the occupiers could

sought a fixed date for vacation contending that , if need be, the occupiers could
be housed on an interim basis in emergency accommodation. The occupiers and
the Department rejected this approach as undignified emphasising that the
occupiers should not be treated as if they are goods that might temporarily be

Page 30 of 57

‘stored’. This approach effectively resulted in the mediation process coming to a
halt. While Ashanti’s frustration is understandable, this was in my view
unfortunate as, in context, the inevitable effect would be to delay progress in
securing suitable alternative accommodation and secure tenure for the occupiers
even further.

[54] During the site inspection in July 2025, the Court and the parties attended
the site of the development, which is in a more urban area but relatively close to
the property . While the developer is in the process of constructing the
development, none of the planned eleven houses have yet been built.
Unsurprisingly, given the ongoing engagement with the Department and the
Municipality.

[55] The Court and the parties were, however, shown a built unit of the sort that
would be provided. There is and can be no dispute that the proposed houses
comprise suitable alternative accommodation as defined in ESTA. The difficulty
is that they are not immediately available and the critical juncture ha s not been
reached when the Department ha s finally approved the s 4 tenure grants. Nor
could a date yet be estimate d with reasonable accuracy for completion of the
units. A further difficulty is that in the circumstances of this case, without ongoing
mediation and court oversight, it is difficult to see how the process would come
to fruition. This ought not to be the case - the Department ought to be able to
implement s 4 of ESTA reasonably, and thus more efficiently and effectively47 -
but it became starkly apparent during the proceedings that absent such a process
in this case, the promise of tenure security in ESTA and the provision of suitable
alternative accommodation will not be achieved.


47Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1)
SA 46 (CC); 2000 (11) BCLR 1169 (CC) at para 42.

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[56] What this means is that at this point the Court cannot conclude that there
is suitable alternative accommodation available to the occupiers. It is very likely
to become available, at least in circumstances where Ashanti’s tender remains on
the table, but it is not yet secured.

Irretrievable breakdown of the relationship between the parties

[57] As indicated above, Ashanti relies on s 10(1)(c) of ESTA to ground both
the termination of rights of residence of s 8(4) occupiers and the eviction of all
occupiers. This entails that ‘the occupier has committed such a fundamental
breach of the relationship between him or her and the owner or person in charge,
that it is not practically possible to remedy it, either at all or in a manner which
could reasonably restore the relationship.’ The factual matrix relevant to this
assessment is wide-ranging and entails a consideration of Ashanti’s position, the
occupier’s position and the various grounds upon which it is contended that the
relationship has broken down. The main aspects are dealt with below.

Ashanti’s circumstances
[58] As indicated above, Ashanti purchased the property in 2010 . Ashanti
explains that when it did so, it did not inten d to use it for agricultural purposes,
save to a limited extent for what might be regarded as cosmetic purposes. Rather,
it wished to use the property for guest accommodation, a conference centre and
wedding venue, which are increasingly becoming sources of revenue and
employment in the area. Between 2010 and 2015, Ashanti spent some
R2 584 240.00 on structures and various costs relating to repairs to wine cellars,
a water and borehole pump, a tarred road, improvements to the convention centre,
a generator, minor improvements, new irrigation, water tanks and earth moving.

Page 32 of 57

[59] Ashanti proceeded to conclude a lease agreement with Cutting Edge
Hospitality, now Metonia Investments (Pty) Ltd. They devised a vision for the
property as a wedding venue, boutique hotel and resort and conducted a related
feasibility study and valuation. When the proceedings were instituted, Ashanti
faced the prospect that the lessee would not be able to conduct business in view
of the circumstances prevailing on the property, which Ashanti attributed to the
occupiers. However, by the time the application was argued, the lessee had
commenced business and was operating the venue. Nonetheless, Ashanti alleges
that it is facing serious challenges controlling its property , to which I return
below.

The occupiers and their circumstances
[60] The occupiers comprise some 72 people living in eleven households. The
occupiers live in a strip of cottages that commences along a road some 50 metres
from Ashanti’s venue and function site. The occupiers do not pay rent to stay on
the property and , save for paying for their own electricity, do not contribute to
services. However, they plead that they have offered to pay rental and contribute
to services, but Ashanti has always asked for more than what they can afford.
Ashanti disputes this saying that they have not received any tender of payment.

[61] The occupiers’ cottages are largely uniform in size and design comprising
a kitchen and living area, a bathroom and two rooms. Two cottages are slightly
larger than the others, with a third room. The bathrooms in these cottages are
inside the home whereas the bathroom s in the other cottages are outside on the
verandah. The cottages are separately enclosed and each has a garden area and
garage. Certain of the cottages have been boarded up as families have left the
property. Ashanti says this is to protect th e properties which have been
vandalised.

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[62] Each of the adult occupiers earn less than R13 625.00. Most are
unemployed and some are pensioners. The households are multi -generational
households and over time, some occupiers have passed away such as Presence
Arendse, Johannes Swartz, Freek Bernadie, Isaac Claasen, Gert van der Merwe
and recently, Elizabeth Arendse.

[63] Mr Willem Claasen is the head of the household living in Cottage number
1. He explains that he was born on the farm and has lived there his entire life. At
the time of deposing to the answering affidavit he was 58 years old. He lives
together with his pa rtner Mavis Claasen and their adult children Luwellen
Claasen (22) and Anthea Claasen (24). Mr Claasen is employed at Boveland in
South Paarl. According to Mr Claasen, his children are seasonal workers. In the
first probation officer’s report, it is explained that Anthea is a contract worker at
a construction site. According to the updated report, she is unemployed and
Luwellen Claasen at that stage was employed. There are no school attending
children in the household but there appears to be a minor child Amenesia
(Anthea’s daughter) living on the property. There are thus four adults and one
child living in Cottage number 1.

[64] On the information initially supplied to Court, cottage number 2 appeared
to comprise of seven adults and three children. The adults are Isaac Claasen (43),
Chriszelda Claasen (38), Sonja Claasen (39), Francoise Isaacs, Abraham
Samuels, Emile Maarman (22) and Mario Minaar. Isaac was born on the property
as was his sister Sonja. His late parents used to work on the property. He worked
on the farm as a casual worke r. He is now self -employed. Isaac is married to
Chriszelda who arrived on the property in 2001 and their children were born on
the property. Two occupiers are pensioners (Abraham Samuels and Dora
Samuels). They live in a shack in the yard. Chriszelda is employed as a bakery

Samuels). They live in a shack in the yard. Chriszelda is employed as a bakery
assistant at Shoprite in Paarl. There are three minors in the household: Earl (15),

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Randolicia (13) and Shakiel (9). Randolicia and Shakiel attend Sonop Primary
and walk to school. Earl attends Paulus Joubert Secondary and also walks to
school. According to the updated probation officer’s repor t, there may now be
fewer people residing in this cottage.

[65] Mr Johan Freddy Fortuin (49) is the head of the household living in Cottage
number 4. He has lived on the property for 40 years and does casual labour on
neighbouring farms. He lives together with his wife Doreen Fortuin (46), who
has lived there for abou t 28 years and who does domestic work in Paarl. They
live with Johan’s daughter, Jasmine van Rooi (25), also born on the farm and who
works as a domestic worker in Paarl, Gershwin Fortuin (22), who is a seasonal
worker and Tashwill Ruiters (33), who works as a security officer in Paarl, is
Jasmine’s partner and has lived there for 5 years. When proceedings were
instituted, five of the adults of the household had lived on the property for over
20 years. According to the respondents, there are three minors i n the household,
each born on the property: Tashmaine (4), Tashwill (2) and Daylon (15). Daylon
is in Grade 8 at Paulus Joubert Secondary School in Paarl and who walks to
school. There thus appear to be five adults and three minors living on the property
although according to the updated probation officer’s report there are fewer in
number.

[66] Ms Katriena Jacobs (52) is the head of the household living in Cottage
number 7. She is unemployed and has been living on the property since 1985. She
lives with her children Bertram Jacobs (22) and Ricardo Jacobs (25), who were
born on the property. There is one school-going child in the household: Shaldien
Jacobs (18), writing matric. There thus appear to be four adults living in the
cottage.

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[67] Ms Sarah Franse is the head of the household residing in Cottage number
8. She lives with Danwill Arendse, Antoinette Arendse, Lauren Arendse and
Elzaan Arendse. Sandra Arendse had lived on the property for some 17 years at
the time of institution of proceedings. There thus appear to be five occupants in
the cottage.

[68] Ms Lena Arendse (66) is the head of household in Cottage number 10. She
is a pensioner receiving a State grant. She resides with her brother Jacob Fortuin
(70), also a pensioner on a State grant, and Charles Fortuin (43) who is disabled
receiving a disability grant. Also living in the household is Charl Samson (21).
Jacob Fortuin used to work for the erstwhile owner of the property. There thus
appear to be four adults living in the cottage, although the updated probation
officer’s report suggests there are three.

[69] Mr Prins Plaatjes (55) is the head of the household living in cottage number
11 with his girlfriend Susan Bester. He was born on the property. He does casual
labour on surrounding farms. He also lives with Petrolene Thomas (23), Rosaline
Thomas (29), Gerhard Thomas (34), Tiaan (Christopher) Van Wyk (35), Ren -
Juhale Thomas (8), Germalo Thomas (2), Germarc Thomas (4) and Tatum
Thomas (2). Ren -Juhale and Germarc attends school at Sonop Primary School
and they walk to school. The four children were born on the property. Gerar d
Thomas and Roseline Thomas live in a shack in the yard of the property. The
members of the household are either unemployed or work nearby. There thus
appear to be seven adults and four children living in this cottage.

[70] The following people reside in Cottage Number 13. Francina (Claasen)
Smith (55, unemployed), Benine (Claasen) Smith (31, domestic work),
Christopher Brendin (Claasen) Smith (24, casual labour on neighbouring farms),
Junet Johanna Smith (39, disability gra nt), Beyonce Smith (16), Bjorgan Smith
(7), Katriena Claasen (44, unemployed), Charlene (Claasen) Smith (28,

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unemployed), Christiano Claasen (8), Johannes Claasen (24, works on
neighbouring farms) and JP Austin Claasen (3). Junet has lived on the property
for over 39 years and was born there. Katriena, Francina, and Johannes was also
born on the property. There are four children in the household, each born on the
property: Beyonce, who attends Paulus Joubert Secondary School; Bjorgan and
Christiano, who attend Sonop Primary School. There thus appear to be eight
adults and four children living in the cottage although the updated probation
officer’s report suggests there are fewer.

[71] Nettie Welcome Hollenbach (61), Alroy Hollenbach (33), Denise van Rooi
and Angelo Hollenbach (15) reside in Cottage number 16. There is one child in
the household, Angelo, who attends school in Paarl. Nettie arrived on the farm
in 1985 with her late husband and receives a State pension and Alroy works on a
farm in Paarl. Alroy and Angelo were born on the property. According to the
updated probation officer’s report, Nettie is now deceased and there thus appear
to be two adults and one child residing in this house.

[72] Mr Dirk Paulse (58) is the head of household residing in cottage number
17. He works on neighbouring farms. He has been residing on the property since
1982. He resides with Jacoba Magdalena Paulse (53), who is disabled and who
arrived on the property in 1 991. He also resides with Elmarie Paulse (33,
unemployed), Dante Paulse (11), Esstin Paulse (11) Paulse and Phillipien Paulse
(28, unemployed). The two children attend school at Sonop Primary and were
born on the property. There thus appear to be four adults and two children living
in this cottage.

[73] Mr Ernst Arendse is the head of the household residing in Cottage number
20. At the time of instituting proceedings, he had resided on the property for
some 30 years with Elizabeth Arendse, now deceased. Also part of the household

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are Chriszelle Arendse, Brandley Arendse, Lee Irvin Arendse and Theogin
Arendse. It is unclear how many occupants are children.

[74] Each household receives running water and electricity. At the present time,
water is sourced from a borehole which is maintained by the applicant (through
its lessee). The occupiers say that Ashanti disconnects and reconnects the water
without warning. Ashanti explains however that water is only disconnected for
purposes of repair and maintenance and with notice. Disruptions to supply occur
as a result of factors such as broken pipes or valves or factors beyond Ashanti’s
control.

[75] Electricity is supplied to each household which pays for it on a pay as you
go basis.

[76] There is a sewage system in place and the occupiers accept that sewage is
regularly collected. The occupiers say however, that when sewage is not
collected, it overflows and runs into the yard causing a health hazard at the houses
and preventing the children from playing. Ashanti explains, however, that the
sewage system is not meant to deal with the number of people who are residing
on the property , which they say has become overcrowded. During the site
inspection, and as traversed in the supplementary affidavits, there was some
unsanitary fecal material on the grounds outside the cottages, at least of dogs,
possibly also human.

[77] The occupiers complain about waste removal, saying it is the duty of
Ashanti to remove waste. There is no dispute that there is a serious waste removal
challenge on the propert y. This was visible during the site inspection and
canvassed on the affidavits exchanged thereafter. There is litter strewn around
the area where the occupiers reside and a large dump in an area adjacent to a dam

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which fronts the property. There was no apparent or effective waste removal
system in place.

[78] On the evidence before Court, it can be accepted that the situation on the
property regarding sewage, fecal material and waste disposal is untenable for both
Ashanti and the occupiers and requires remediation.

Control over the property and security concerns
[79] Ashanti pleads in the founding affidavit that it has lost control over its
property as a result of the conduct of the occupiers.

[80] In this regard, Ashanti alleges that they are not always aware of who is
living on the property as new occupiers have come to live on the property. This
is disputed by the occupiers who say that the people who live in the cottages have
been the same people and it is relatively easy to keep track of who resides there.
They say they have been approachable over time and it is Ashanti which has failed
to keep track of who is in occupation . In reply, Ashanti says that it sought to
conduct a census at a point and that it is apparent that the identities of some were
concealed. However, there is no specificity as to whose identities were concealed
and it is difficult to see why this issue was n ot raised in the founding affidavits.
What is apparent from the information before Court, however, is that there are
some changes in the composition of the households, some resulting from deaths
and births and some resu lting from members of families leaving . However, the
primary residents appear to be both ascertained and relatively constant ,
comprising a settled community of people.

[81] The occupiers further dispute that Ashanti has no control over the property
noting that Ashanti carries on business there. They reiterate that a t the present
time, Ashanti runs a wedding and conference venue and provides guest

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accommodation. It is indeed so that the business is being conducted on the
property, through the lessee , and while challenges are faced, there is thus
sufficient control over the property to this end.

[82] Ashanti alleges in the founding affidavit that for security purposes,
occupiers are expected to use the single main entry and exit gate , where there is
a permanent security presence. Ashanti is not able to afford a permanent security
presence over the entirety of the property, it says. At that stage the property was
encircled by a security fence to prevent uncontrolled access. However, Ashanti
alleged that the prescription has been ignored by the occupiers in that there were
multiple pathways leading to points of access along the perimeter of the property.
Ashanti contended that it was reasonable to require that access and exit be via the
main gate.

[83] In this regard, Ashanti alleged that the property had become ‘plagued by
criminality’ due to fact that the security fence around the property had effectively
become redundant and in circumstances where third parties access the property
without Ashanti’s consent, using points of access other than the main gate.
Ashanti alleges that on no occasion has any occupier requested consent for a
visitor to the property.

[84] Ashanti further alleges that visitors are expected to conduct themselves
decorously with due consideration for the rights of other occupiers, Ashanti and
its guests and employees . However, Ashanti claims that criminality, abusive
behaviour, public consumption of alcohol and verbal and physical aggression and
assault occur on a daily basis.

[85] In this regard, Ashanti provided the Court with a copy of its logbook of
incidents between April 2011 and March 2018, during which period some 109
incidents of criminality or vandalism were recorded. Examples highlighted in the

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founding affidavit – only a small portion of the incidents – include a break in of
the main house in April 2011 during which materials with a sale value (all taps,
cables and brass window stays) were stolen; a further break-in of the house on 16
August 2011; in December 2011, occupiers’ children left rubbish at the dam
adjacent to the venue in full view of the conference centre and wedding venue ;
on 31 January 2012, the office of the main house was broken into and records
vandalised; on 11 April 2012, gutters at the main function venue were smashed;
during June 2012, a person habitually defecated in front of the main entrance to
the wine cellar; during February 2013, there was vandalism of concrete slaps cast
for construction purposes; on 29 April 2013, a pump was stolen out of the pump
room; on 17 July 2013, the function venue was broken into; on 3 September 2013,
the security guard at the gate was racially abused by a taxi driver who was refused
entry to the property; on 13 September 2 013, the farm manager removed 11
puppies from the occupiers’ houses; on 22 October 2013, one of Ashanti’s tenants
was threatened with a knife by Bradley Arendse and his car tires slashed [para
35.5.12]; on 14 May 2015, Bradly Arense beat a dog to death on the property; on
23 June 2014, vacant cottages were vandalised with the doors and windows
broken; on 25 August 20 14, an occupier unlawfully chopped and sold wood on
the property; on November 2014, a guest had his car stoned when leaving the
property and was injured; on 16 June 2016, the barricade to prevent people
driving onto the property was removed; on 25 June 201 6, an intoxicated third
party forced his way onto the property ; on 15 November 2017, a pe rson was
stabbed at the function venue in the head, chest and leg, on 28 December 2018, a
guest’s car was broken into and the chef threatened at gun point and there have
been various instances of fires set on areas of the property.

been various instances of fires set on areas of the property.

[86] Importantly, in these proceedings, Ashanti does not attribute the conduct
to any specific occupier but to show that there is an absolute breakdown of the
relationship between the occupiers and Ashanti as Ashanti has lost control over

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the property. Ashanti accepts that in many instances the conduct may be that of
third parties, but because the applicant has no control over the property, it
attributes the state of affairs to the breakdown in the relationship with the
occupiers.

[87] Ashanti contends that it cannot continue to do business in the sector while
this sort of conduct ensues. Moreover, it is highly costly for example the cost of
security at the gate is R9100 per month.

[88] The occupiers dispute their responsibility for criminal or aberrant conduct
and allege that the allegations in this regard are vague, unsubstantiated and based
on hearsay evidence. They say there is no proof that they are responsible for
aberrant behaviour or breach of contract. In respect of the issue of access, they
say that the main gate is used for vehicles and that there are footpaths elsewhere.
They take issue with Ashanti’s suggestion that they are responsible for security
on the farm, any wrongdoing for exercising their freedom of movement and being
to blame for the increase in alleged criminality. They reiterate that none of the
occupiers have faced criminal charges or are accused or implicated in
wrongdoing. Mr Claasen explains that he believes that many of the instances of
alleged criminality related to a Mr Tiel who used to live on the property but left
several years earlier . Mr Claasen is not aware of an y police presence on the
property since 2010. The occupiers allege further that the duty to provide
perimeter security is that of Ashanti . On the evidence , it can be accepted that
during this period, the occupiers did access the property on foot via footpaths at
various points along the perimeter. However, it cannot be accepted that there was
a communicated rule regarding access via only the main gate or that any security
risk was created by the conduct of the occupiers.

[89] By the time the matter was argued the situation on the farm regarding

[89] By the time the matter was argued the situation on the farm regarding
security had changed. Ashanti had, through its lessee, erected an internal fence

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around the area used by its lessee to conduct its business and no longer relied on
any perimeter fence to secure the premises. The perimeter fence was effectively
no longer in place. The erection of the fence is however a source of controversy
as it has resulted in the occupiers having to walk further – around the fence – to
access their houses from the main gate.

Costs of accommodating the occupiers and alleged absence of maintenance
[90] Ashanti has carried the costs of accommodating the occupiers since
purchasing the property. It alleges that the cost of removing the sewerage is
R3726 per month. The cost of electricity, they alleged, comes to some R10 000.00
per month. This however is difficult to reconcile with facts that emerged
following the inspection in loco which demonstrate that each household pays for
electricity on a pay as you go basis. I accept nonetheless that electricity costs are
incurred, for example in connection with the borehole which supplies water both
to the lessee’s operations and to the occupiers.

[91] According to Ashanti, the occupiers reside on the property without any
payment or tender of payment for water, sewage removal and household waste.
The occupiers say that they have and do tender payment for services. Ashanti
disputes this and say that they would accept any contribution for services. I
accept on the evidence that the occupiers have tendered payment for services but
this does not appear to have been duly explored.

[92] Ashanti alleges that the duty to maintain the houses is that of the occupiers.
However, the cottages, they say, have fallen into disrepair and dilapidation. They
say that windows are broken, electrical fixtures and fittings have been removed,
taps and plumbing appurtenances do not work or have been damaged and the
areas surrounding each cottage consists of was te strewn across what used to be

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attractive gardens. The occupiers contend that Ashanti is neglecting its own
maintenance obligations but also say that the houses are maintained.

Overcrowding
[93] Ashanti alleges that the cottages are hopelessly overcrowded and that there
is no space for building further structures and that the sewage system is not built
for the number of people in occupation. They say that the houses are built for a
nuclear family and are not meant for multi -generational families comprising six
to ten people . During argument, counsel for Ashanti identified several houses
where the numbers are relatively high. They say that the rule has always been that
spouses may live on the property with their children but that the children must
leave after they reach the age of majority.

[94] The existence of this rule is denied as is the fact of overcrowding. The
occupiers say that the cottages are not overcrowded when one has regard to their
size and the number of people living there and that the occupiers themselves have
no complaints. They say that there is no evidence before Court that allows the
Court to draw conclusions about the standards of overcrowding. They say that
there has never been any discussion about the number of people who may live
there.

[95] The occupiers also contend that it is not lawful for Ashanti to prescribe that
only minor children may live with an occupier as the question, rather is whether
there is legal dependency. In this regard, the legal position is governed by section
6(2)(d) of ESTA which confers the right on occupiers to family life which was
interpreted by the Constitutional Court in Hattingh48 to include extended family
and not be limited to the nuclear family, mindful that ‘families come in different

48 Hattingh and Others v Juta [2013] ZACC 5; 2013 (3) SA 275 (CC); 2013 (5) BCLR 509 (CC) at para 34.

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shapes and sizes.’ 49 However, since the coming into force of the ESTA
Amendment Act, ESTA has defined a family to mean the occupier’s spouse and
to include a spouse in a customary law marriage, a child, including an adopted
child, or foster care child, a grandchild, a parent and a grandparent who are
dependants of the occupier and who reside on the land with the oc cupier.’50 A
dependant is defined to mean ‘a family member whom the occupier has a legal
duty to support.’51 It is not possible, on the information to hand, to establish the
extent to which those residing in the cottages comprise of families as now defined
nor was argument addressed on the proper interpretation of the new definition .
However, this is not necessary as what is clear is that all occupiers on the property
have at this stage acquired independent rights of occupation as a result of the
deeming provisions in subsecs 3(4) and (5) of ESTA.52

Keeping of dogs

[96] A further complaint of Ashanti is that the occupiers keep dogs, which they
say is prohibited. This rule they say is because those who attend weddings and
conferences do not want to have dogs roaming freely and are rightfully scared of
dogs. Moreover, there is problem of faecal matter of the dogs which has become
a source of complaints from guests. Ashanti says there is no control over the dogs
on the property, which roam at will.

[97] The occupiers dispute that there is a rule about dogs on the farm. They say
that those who have dogs buy them food and call them to eat . This response
stands in contrast to the response to the request for representations where it was
incorrectly stated, somewhat troublingly, that dogs were not kept.

49 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs
and Others; Thomas and Another v Minister of Home Affairs and Others [2000] ZACC 8 ; 2000 (3) SA
936 (CC); 2000 (8) BCLR 837 (CC) at para 31.
50 Section 1 of ESTA.
51 Id

936 (CC); 2000 (8) BCLR 837 (CC) at para 31.
50 Section 1 of ESTA.
51 Id
52 See Klaase, above n 6.

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[98] During the site inspection, and canvassed on the affidavits thereafter, it is
clear that the occupiers keep dogs on the property . They were tied up in the
occupiers’ yards, a practise with which Ashanti then took issue.

The relationship between parties

[99] Ashanti contends that initially its relationship with the occupiers was
reserved, though marked by suspicion on the part of the occupiers, the
relationship has, since 2010, wholly broken down. They contend that t he
occupiers do not comply with the rules of occupation , which are integral to
Ashanti’s business, and regard themselves as owners of the property with which
they can do as they see fit.

[100] Ashanti claims that it has at all times engaged with the occupiers in a
respectful manner and in accordance with the law . According to Ashanti, the
relationship between Ashanti and the occupiers is ‘marred by, at best, an
unwillingness to communicate’ and ‘not infrequently by hostility and aggression
on their part.’ These allegations are made at a high level and not particularised.

[101] According to the occupiers, the owners do not interact with them and have
not taken the trouble to get to know who they are. They say the owner sends
‘workers with papers’ to them and refuses to meet with them. They accept that
there is no meaningful relationship, but the occupiers expected this to be better .
Mr Claasen alleges that there is no breakdown in relationship because Ashanti
has not made any effort to have one with the occupiers. He says that better
solutions may have been found had there been proper engagement with the
occupiers at the time of the allegedly defective attempt to terminate their rights.

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[102] In reply, Ashanti accepts that it does not generally interact with the
occupiers. The reason, they say is that it was apparent upon Ashanti taking
ownership that its presence was not welcomed. They say further that the tenor of
the occupiers’ answering affidavit itself reveals a breakdown in relations. In this
regard there are points where the occupiers’ say inter alia that they are being
treated as slaves or chattels.

Alleged breach of rules / customs
[103] The conduct referred to above is alleged not only to evidence an
irretrievable breakdown in the relationship but to constitute a breach of the rules
that apply to occupation. Thus Ashanti pleads that there is a breach of the rule
that only spouses and children under the age of eighteen may reside in the
cottages, there is a breach of the rule against keeping of dogs, the duty to obtain
consent for visitors, the duty to access the premises at the main gate and the duty
to maintain the premises. The occupiers dispute these rules, in part on the grounds
that the rules would be unlawful, violative of dignity or discriminatory and in part
on the basis that they were never discussed and have been unilaterally asserted in
this application.

Further assessment
[104] Having evaluated the evidence on the relationship between the parties,
there can be no doubt that the relationship is highly strained and that it is not a
meaningful relationship. Moreover, aspects of the relationship are understandably
troubling to Ashanti and the occupiers alike. But that is not the question. The
question is whether the occupiers have committed such a fundamental breach of
the relationship between them and Ashanti that it is not practically possible to
remedy it , either at all or in a manner which could reasonably restore the
relationship.

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[105] In Nimble Investments, the SCA held that the wording of s 10(1)(c) ‘makes
it clear that what is contemplated is an act of breaking the relationship on the part
of the occupier that is essentially impossible to restore.’ 53 Moreover, the SCA
affirmed a finding of this Court that the relationship refers to a social rather than
legal relationship and that the requirement is met if ‘it is practically impossible
for the relationship to continue due to a lack of mutual trust.’54 Factors that must
be considered when determining whether an occupier has committed a
fundamental breach of the relationship envisaged in s 10(1)(c) of ESTA include
‘the history of the relationship between the parties prior to the conduct giving rise
to the breach ; the seriousness of the occupier’s conduct and its effect on the
relationship and the present attitude to the parties to the relationship as shown by
the evidence.’55

[106] Inasmuch as Ashanti relies on the existence of rules of conduct to ground
any breach of relationship, I am either unable to conclude that the rules have been
communicated and put in place or , in certain instances, that they are applicable
or lawful. I have dealt above with the inapplicability of the alleged rule regarding
only spouses and minor children living in the cottages.

[107] The alleged rule that consent is required to receive visitors is, in my view,
inconsistent with ESTA, properly interpreted. In dealing with this issue I am
mindful that Ashanti contended it does not arise on the pleadings. On my reading
of the papers, the occupiers do take issue with the alleged rule but in any event,
this Court is enjoined to interpret and apply ESTA to the facts of the matters that
come before it. Section 6(2) of ESTA confers on an occupier the right, balanced
with the rights of the owner, to receive bona fide visitors at reasonable times and

53 Above n 17 para 46.

53 Above n 17 para 46.
54 Id with reference to Ovenstone Farms (Pty) Ltd v Persent and another [2002] ZALCC 31 para 11.
55Nimble Investments para 46 to 47

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for reasonable periods provided that the owner or person in charge may impose
reasonable conditions that are normally applicable to visitors entering such land
to safeguard life or property or to prevent the undue disruption of work on the
land. In my view, it would unduly restrict this right, in a manner violative of the
dignity of occupiers, to render it subject to consent of an owner or person in
charge, however reasonably such a power may be exercised. Rather , the
conditions an owner or person in charge would need to relate to the manner of
exercise of this right rather than the fact of its exercise. This Court is enjoined to
interpret ESTA in a manner that promotes the spirit, purport and objects of the
Bill of Rights. The Court must afford occupiers the fullest possible protection of
their constitutional guarantees and prefer generous constru ctions over merely
textual or legalistic ones.56 In my view, even the literal reading of the provision
supports the construction I give it.

[108] As for the remaining rules, their existence, or the terms on which they are
pleaded are in dispute, and in any event, there is no evidence upon which this
Court can conclude that any of the rules were at any stage communicated to the
occupiers. On the contrary, they appear to be rules that Ashanti would like to have
in place . Put differently, it is clear that there ha s not been a meaningful
relationship between the parties since Ashanti arrived on the property, no
effective communication and no real efforts to put in place rules or even systems
that reasonably balance the rights of owner and occupier.

[109] Ashanti’s reliance on the absence of any contribution to rental or services
stands on a somewhat different footing as Ashanti cannot reasonably be expected
to cover all of the costs of the occupiers’ occupation of the property, not least
over such an extended period of time. However, Ashanti’s difficulty is that on the

over such an extended period of time. However, Ashanti’s difficulty is that on the

56 Klaase, above n 6 and Department of Land Affairs and others v Goedgelegen Tropic Fruits (Pty) Ltd [2007]
ZACC 12; 2007(6) SA 199 (CC); 2007(10) BCLR 1027 (CC) paras 53 and 55.

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evidence before me, the occupiers have tendered to contribute to both rental and
services and rather, what is starkly absent is any evidence of an attempt by
Ashanti to put in place a compensatory system, whether at the time of seeking to
terminate the occupier’s rights or at any time prior thereto. Rather, Ashanti has,
since becoming the owner of the property in 2010 sought the occupiers’
relocation and eviction. In these circumstances, I am unable to conclude that any
breakdown of relationship as a result of non-payment is either solely due to the
conduct of the occupiers or not remediable.

[110] Ashanti’s concerns regarding an absence of control over their property are
reasonable. However, there are different aspects to this which require
consideration to assess the occupiers’ role and the impact on the social
relationship. Ashanti, on its own version, pertinently does not attribute criminality
or vandalism to any of the occupiers. Indeed, they expressly say that they do not
do so. Rather, their concern is an absence of control over third parties who gain
access to the property due to their absence of control over their property . This,
in turn, is allegedly due to uncontrolled visitation and a failure to use the main
gate for pedestrian access. I am unable to accept on the evidence before me that
the criminality and vandalism is due to these factors or attributable to the
occupiers. Moreover, there is an absence of any real effort to put in place systems
for visitation and access that reasonably balance the rights of the occupiers and
Ashanti. In those circumstances, it is difficult to see how any impact on the social
relationship can be said to be irremediable.

[111] The issue of overcrowding is, in my view, a matter of legitimate concern
to Ashanti. The cottages are small and while some are clearly not overcrowded,
others are accommodating numerous people including apparent newcomers as

others are accommodating numerous people including apparent newcomers as
Ashanti contends. However, Ashanti’s difficulty is that it does not distinguish
between households that are overcrowded and those that are not and, moreover,

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there have been no efforts to remedy the difficulties or to pursue a course where
only some people are asked to vacate.

[112] Ashanti’s concerns regarding sanitation and waste are, in my view, serious
matters and the area used by the occupiers is not kept in an acceptable state. The
impact of overcrowding on sanitation may well be a factor, but one that does not
warrant a wholesale termination of rights in order to remediate it. What of the
issue of waste disposal and the clear prevalence of unacceptable levels of waste
strewn across the area of the property used by the occupiers ? In my view, this
conduct can only have a damaging effect on the social relationship between the
parties. However, I am again unpersuaded that this is something that cannot be
remediated. In this regard, there was no apparent waste disposal system in place
on the property nor can I conclude on the evidence that there have been any
serious efforts to put workable systems in place.

[113] In all of the circumstances, I am not satisfied that Ashanti has
demonstrated, as a matter of fact, that the occupiers have committed such
fundamental breaches of the relationship that it is not practically possible to
remedy it, either at all or in a manner that could reasonably restore the
relationship. In this regard, I have considered the parallels between this matter
and Skog,57 upon which Ashanti placed heavy reliance and, while there are points
of commonality, I am of the view that the evidence in this case does not warrant
the findings that were warranted in that matter.

Is a termination of rights in terms of section 8 of ESTA

[114] The first issue is whether Ashanti terminated the occupiers’ rights of
residence in terms of s 8 of ESTA.

57 Skog NO and others v Agullus and others 2024(1) SA 72 (SCA).

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[115] I consider this in light of the nature of the occupiers’ rights of residence.
In this regard, it is not in dispute that the occupiers have consent to occupy the
property as contemplated by ESTA. The occupiers came to live on the property
initially as a result of the employment of one or more members of a family by the
erstwhile owner. Family members resided with them as an incident of the right to
family life. It can be accepted that as a result of the termination of the relevant
occupiers’ employment in 2006, their rights to reside there as a result thereof were
either terminable or were in fact terminated. To the extent that the rights were
terminated at that time, since that time , the occupiers have been living
continuously and openly on the property and would now have consent to do so as
a result of the deeming provisions in s 3(4) and (5) of ESTA.58 Even that consent
has now endured over many years. Moreover, as the occupiers contend, some of
them enjoy protection under s 8(4) of ESTA.

[116] The occupiers contend first that there was no notice of termination of their
rights in that the notices for representations and termination of rights w ere not
sent to each occupier separately. It is common cause that many if not most of the
occupiers were sent these notices. However, counsel for the occupiers analysed
the papers to identify which of the occupiers did not receive personal notices of
termination and I accept that some did not. However, at that time, save for two
households, all households were apparently represented by the Stellenbosch Law
Clinic and made representations regarding the termination of their rights.
However, I am not apprised of sufficient information to conclude whether each
occupier was legally represented. On the papers before me, I am constrained to

58 Section 3(4) provides: ‘For the purposes of civil proceedings in terms of this Act, a person who has continuously

and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is
proved.
Section 3(5) provides: ‘For the purposes of civil proceedings in terms of this Act, a person who has continuously
and openly resided on land for a period of three years shall be deemed to have done so with the knowledge of the
owner or person in charge.’

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conclude that there were some occupiers who were not given notice of
termination of rights.

[117] The occupiers contend further that the process of termination of rights was
not fair. As set out above, Ashanti did afford or purport to afford the occupiers an
opportunity to make representations. However, the occupiers contend that this
was a mere box ticking exercise and did not amount to a fair opportunity to
engage. In my view there is merit to the occupiers’ contention on the facts of this
case. As set out above when dealing with the alleged breakdown of the
relationship between the parties, I am of the view that a number of the concerns
about the relationship Ashanti relies on are matters of substance and legitimate
concern. However, what is notably absent in the representations’ process is any
engagement with the occupiers about potential remedies or solutions. In the
circumstances of this case, i t is difficult to see how the representations process
could be fair unless there was a genuine attempt to engage on both the relational
challenges and possible remediation measures. That did not happen.

[118] Thirdly, the occupiers contend that the termination was not substantively
justified having regard to relevant considerations .59 This is a case where the
interests and hardships for owner and occupier are relatively evenly balanced .
However, in the light of the assessment of the facts concerning the alleged
breakdown of the relationship and the absence of remediation efforts, I am unable
to conclude that the termination of rights was just and equitable in all of the
circumstances. That consideration is, moreover, decisive in respect of those
occupiers who are protected by subsec 8(4) of ESTA.


59 See above n 16.

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[119] In the result, I agree with the occupiers that the termination of the rights of
residence in 2018 was not just and equitable and not in accordance with s 8 of
ESTA.

Is an eviction in accordance with s 10 and / or s 11 of ESTA?

[120] In any event, I am unable to conclude that Ashanti has demonstrated
compliance with s 10 and / or s 11 of ESTA as required by s ubsec 9(2)(c) of
ESTA.

[121] First, Ashanti does not specify and has not clarified which section applies
to which occupiers, an approach which in my view is not regular. But even if I
am wrong, Ashanti was resultantly constrained to argue its case by relying, in
respect of all respondents, on the more onerous subsec10(1)(c) of ESTA. I have
concluded above that Ashanti has not proven that case.

[122] In these circumstances, Ashanti is constrained to rely, to the extent
permissible, on s ubsec 10(2) of ESTA, the availability of suitable alternative
accommodation. This is permissible insofar as the occupiers are not persons
protected by subsec 8(4) of ESTA. Ashanti’s difficulty in this regard, as set out
above, is that while suitable alternative accommodation will likely become
available, it is not yet available and, pertinently, Ashanti insisted on having the
matter set down before the Department had finalised the process of approval of
the s 4 grant applications.

[123] In these circumstances, I am unable to conclude that a case for eviction has
been made out.

Further mediation / the counter-application

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[124] In the usual course, these findings would result in this Court dismissing the
eviction application. However, in my view, such an order is not warranted in
circumstances where the parties are so close to securing a meaningful resolution
of their dispute through court -ordered mediation and ongoing engagement
regarding the availability of suitable alternative accommodation and securing the
tenure of the occupiers.

[125] This Court is entitled to decline to make an order where a party has failed
to make out a case but may be in a position to do so in due course on supplemented
papers.60 Ashanti may wish to do so should they consider themselves entitled to
continue to pursue terminating the occupiers’ rights in accordance with s 8 of
ESTA in light of the content of this judgment.

[126] I am of the view , moreover, that this is a case where , despite the already
extended process, ongoing mediation is indeed justified61 and will both serve to
balance the interests of occupiers and landowner and serve the central objective
of ESTA to secure tenure of occupiers who have occupied land over very many
years and whose precarious position is the result of past discriminatory laws and
practices. As indicated above, the Constitutional Court set out a brief history of
these laws and practices in Daniels, which history this Court recently noted in
Marais,62 in which this Court affirmed the value of mediation and engagement in
redressing these wrongs.

[127] In Marais, the Land Court emphasised that mediation should be conducted
speedily and efficiently in order that any limitation of the right of access to Court

60 Rule 33(9) which provides: ‘The Court, after hearing an application, whether brought ex part or otherwise, may
decide to make no order thereon (save as to costs if any) but to grant leave for the applicant to renew the application
on the same papers supplemented by such further affidavits and documents as the case may require.’

61 PE Municipality above n 13 para 45 and Marais above n 1 para 71.
62 Above n 1 paras 17 to 19.

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not be unreasonably or unjustifiably limited.63 In the ordinary course, and in view
of the extended time already spent in mediation, this consideration would either
suggest that further mediation should not be ordered or if it were, that it be ordered
for only a limited further period of time. However, in circumstances where this
Court is declining to dismiss the application, as set out above, access to justice is
better served if the parties are able to continue with the mediation as required and
if Ashanti is able, should circumstances warrant it, to continue to pursue the
litigation on supplemented papers in due course.

[128] Ashanti sought mediation in the counter -application but at the hearing
focused on the need for mediation until judgment. Insofar as the counter -
application does not cater for relief post judgment, this Court remains empowered
to authorize ongoing court-ordered mediation between the parties.64

Order
[129] This is not a case where an order for costs is justified in the main
application. Ashanti initially sought costs occasioned by the affidavit of Mr
Mahomed of 16 March 2024 against Mr Mahomed personally in circumstances
where, it says, the allegations are defamatory, vexatious, irrelevant and scurrilous.
The request for personal costs was, however, abandoned, in my view responsibly.
Nonetheless, I emphasise that the affidavit has not been admitted in evidence and
its content is not relevant to the proceedings at this juncture. The allegations
contained in the affidavit are very serious and on the information be fore me,
including the application to strike out, would not be sustained. However, I am not
persuaded that Mr Mahomed was not acting in good faith to advance the case of
his clients, and I can see no reason to depart from the usual rule that no costs be
ordered.

63 At para 70.
64 PE Municipality and s 29 of the Land Court Act 6 of 2023.

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[130] The following order is made:

1. The parties are authorised to approach this Court on notice for an
order to re -appoint Mr Elton Shortles (or another agreed
mediator) for a period of twelve months which may be extended
on good cause shown.

2. The Department of Rural Development and Land Reform is
directed to take such steps as may be necessary to finalise the
processing of the s 4 applications of the first to fifty seventh
respondents within a period of sixty days of the date of this order.

3. Ashanti is granted leave to renew the application on the same
papers supplemented where necessary.

4. There is no order for costs.


____________________________

SJ COWEN

Deputy Judge President, Land Court

Appearances:

Applicant: L Wilkin instructed by Harmse Kriel Attorneys

First to Fifty Seventh Respondents: Mr A Mahomed, Ashraf Mahomed
Attorneys

Fifty Eighth Respondent: H Scholtz instructed by Blackburn Inc Attorneys

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Fifty Eighth Respondent: M Titus instructed by State Attorney, Cape Town